*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 14 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, No. 98-2021

v. (D.C. No. CIV-96-1735-JP)

ELLISTON CALLWOOD, (D. NM)

Defendant - Appellant.

 

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining Defendant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

Defendant, a prisoner in the Federal Correctional Center in Florence,

Colorado, was convicted on six charges involving possession and distribution of
1

 We grant Defendant’s motion to proceed in forma pauperis pursuant to 28

U.S.C. § 1915(a)(1).

-2-

marijuana and the use or carrying of a firearm under 18 U.S.C. § 924(c) in the

United States District Court for the District of New Mexico. His convictions

were affirmed on appeal to this court. See United States v. Callwood, 66 F.3d

1110 (10th Cir. 1995). Defendant then filed a pro se 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence in which he alleged ineffective assistance

of counsel and various errors by the trial court and claimed that his firearms

convictions were invalid under Bailey v. United States, 516 U.S. 137 (1995). The

district court adopted the magistrate judge’s Proposed Findings and

Recommended Disposition and denied and dismissed the motion. Defendant

seeks to appeal the district court’s dismissal of his section 2255 motion and

requests a certificate of appealability.1

On appeal Defendant makes the following arguments: (1) The district court

was without jurisdiction to try and convict him; (2) the court erred in dismissing

his section 2255 motion without an evidentiary hearing; (3) his firearms

convictions are invalid because of the court’s failure to give a proper jury

instruction on 18 U.S.C. § 924(c); and (4) his appointed trial counsel was

ineffective. Defendant also requests this court to order an evidentiary hearing on

each of these issues.
2

 We note that the Supreme Court’s recent clarification of the meaning of

“carry” under 18 U.S.C. § 924(c) does not change the result in this case. See

Muscarello v. United States, U.S. , 118 S. Ct. 1911 (1998).

-3-

After thoroughly reviewing the record, we conclude that Defendant has not

“made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Despite Defendant’s argument to the contrary, the district court’s

original jurisdiction is well settled. See 18 U.S.C. § 3231; United States v.

Lampley, 127 F.3d 1231, 1246 (10th Cir. 1997), cert. denied, U.S. , 118 S.

Ct. 1098 (1998). We agree with the findings and recommendation of the

magistrate judge, as adopted by the district court in its Order filed December 31,

1997, that none of the issues presented by Defendant gives rise to relief under 18

U.S.C. § 2255.2 See also United States v. Durham, 139 F.3d 1325, 1334-1336

(10th Cir. 1998) (holding that conviction of using and carrying a firearm was

valid after Bailey because the jury’s verdict “necessarily embraced all the

elements of a ‘carrying’ violation”) (citation omitted), petition for cert. filed,

(U.S. June 22, 1998) (No. 97-9687). Because the record conclusively shows that

Defendant is entitled to no relief, the district court did not err by dismissing the

motion without a hearing. See 28 U.S.C. § 2255. Accordingly, we decline to 
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issue Defendant a certificate of appealability and dismiss the appeal.

DENIED and DISMISSED.

Entered for the Court

Monroe Mckay

Circuit Judge